Babita Lila v. Union Of India

G.S Solanki, J.:— The applicants invoked extraordinary jurisdiction of this Court under section 482 of Cr.P.C praying for quashment of criminal proceedings against the applicants in R.T No. 5171/2011 (Union of India v. Smt. Babita Lila) pending before the Chief Judicial Magistrate, Bhopal.

2. The facts, in a nutshell, giving rise to this petition are that a private complaint has been filed on behalf of respondent under section 200 CrPC against the applicants/accused persons alleging that the search operation under section 132 of Income Tax Act, 1961, was conducted by the Income Tax Department, Bhopal at the residence of accused persons on 28.10.2010 It was further alleged that during the search, statement of applicants/accused persons were recorded by authorized officer of Income Tax Department at Aurangabad. It is alleged that while making aforesaid statement, applicants/accused persons had denied having locker in their names. But subsequently, it was found that locker was held in the name of applicants in Apex Bank (formerly known as UTI Bank), Kranti Chowk, Aurangabad. On the basis of allegations, it was alleged that applicants/accused persons have given false statement thereby they committed the offence under sections 109, 191, 193 and 196, 200, 420/34 and 120-B of IPC. Copy of complaint is Annexure P-1.

3. It is submitted on behalf of applicants/accused persons, that learned CJM registered the case against the applicants vide order dated 09.06.2011 under section 191, 193 and 200 of IPC, without recording the statement under section 202 Cr.PC It is further submitted that statement was recorded by Income Tax Officers at Aurangabad in Maharashtra, therefore, CJM Bhopal has no jurisdiction to hear the matter. It is further submitted that applicant No. 1 was ill. She was hospitalized on 28.10.2010 and was discharged from hospital few days earlier on 22.10.2010 As per allegations, the search team reached at the residence of applicants at “Lila Dham, Bansilal Nagar, Aurangabad at 8.00 a.m on 28.10.2010 Applicant No. 1 became unconscious and she was hospitalized and she remained in hospital under heavy medication and she was discharged on 29.10.2010 Relevant documents are Annexure-P-4. In these circumstances, applicant no. 1 was not in a position to give any statement. Further, it is submitted that applicant no. 2 was also under tremendous stress and anxiety due to illness of his wife. Therefore, he was not in a position to concentrate on the instructions issued to him. It is further alleged that applicants have no mala fide intention for non-disclosure of locker in their statement. They only operated on 30.10.2010 but to bring certain articles required for some religious rituals in the family. If they have any malafide intention, then they would have rushed to the bank at the earlier opportunity which was not done by them. Therefore, on the aforesaid submissions, applicants pray for quashment of proceedings pending before CJM, Bhopal.

4. Learned counsel for the applicants further submitted that sections 191, 193 and 200 of IPC are covered by section 195 CrPC which provides in sub-section 1 clause (b)(i) of the Act that no Court shall take cognizance for offence punishable under sections 193 and 200 IPC except any complaint in writing of that Court or by such officer of the Court, as that Court may authorize in writing in this behalf or some other Court to which that Court is subordinate. He further submitted that in this case, the statement was recorded by some other Income Tax Officers at Aurangabad. For the purpose of section 195 CrPC, if at all, the said authority is considered to be the Court, then it could have been Shri A.T Kapuse, I.T.O and Smt. Bharti Choudhary, ITO. Complaint is filed by Deputy Director of Income Tax (Investigation)-I Bhopal which is illegal and liable to be quashed. It is further argued that statements were rerecorded at Aurangabad in Maharashtra, therefore, CJM Bhopal has no jurisdiction for taking cognizance on the aforesaid statement.

5. On the other hand, learned counsel for the respondent submitted that any proceedings before I.T.A shall be deemed to a judicial proceeding under section 136 of I.T Act, and every Income Tax Authority shall be deemed to be a Civil Court for purposes of section 195 CrPC. It is further submitted that statements were recorded by an authorized officer who has same powers as vested in Court under Civil Procedure Code. Therefore, private complaint filed by Deputy Director of Income Act (Investigation)-I on behalf of Shri A.T Kapuse and Smt. Bharti Choudhary, Income Tax Officers, who recorded the statement cannot be said to be illegal. He furtherer submitted that since search operation was conducted under section 132 of I.T Act, and during the search, the applicants/accused persons have not disclosed their locker to the competent officer which amounts to undisclosed property under section 132(c) of I.T Act in regard to the property/income of applicants at Bhopal. Therefore, CJM Bhopal has jurisdiction to try the alleged offence against the applicants/accused persons.

6. I have perused the impugned order passed by CJM Bhopal and other material on record. The applicants/accused persons are resident of Bhopal as well as Aurangabad and the income tax return was filed at Bhopal. Search operation under section 132 of Income Tax Act was conducted simultaneously at Bhopal and Aurangabad by the Income Tax Department, Bhopal in relation to the fact of undisclosed property, for which income tax return was filed at Bhopal. In these circumstance, CJM Bhopal has jurisdiction to try the case as per section 178(i)(b)(d) of the Act.

7. So far as second contention raised by the learned counsel appearing on behalf of the applicants regarding section 195 CrPC is concerned, in this case, complaint is in writing filed by authorized officer-Smt. Bharti Singh, Deputy Director of Income tax (Investigation)-I, Bhopal (M.P) who is superior officer to Shri A.T Kapuse and Smt. Bharti Choudhary, ITOs who recorded the statements of applicants. However, bare reading of section 136 of I.T Act and Section 195 of CrPC reads as follows:

136-Any proceeding under this Act before an income-tax authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Indian Penal code (45 of 1860), and every income-tax authority shall be deemed to be a Civil Court for the purposes of Section 195, but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

8. Section 195 of CrPC:

(a) …………..

(b)(i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii)…………

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (I) or sub-clause (ii), [except on the complaint in writing of that Court by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate].

1. Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “Court” means a Civil, Revenue of Criminal Court, any includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principle Court having ordinary original jurisdiction within whose local jurisdiction such Civil Court is situate:

Provided that-

(a) Where appeals lie to more than one Court, the appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) Where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

9. In this case, statements of applicants were recorded by ITOs who shall be deemed to be a Civil Court and the Deputy Director of Income Tax is the superior officer, who filed complaint case, to whom the appeal from ITOs ordinarily lies.

10. In these circumstance, order passed by the trial Court dated 09.06.2011 cannot be said to be perverse and if the same remains continue, will not amount to abuse of process of the Court.

11. The facts relating to illness of applicant No. 1, may the the defence of applicant which could be considered at the time of trial.

12. Thus, no case is made out for interference by this Court exercising extraordinary jurisdiction under section 482 CrPC. Thus, the petition has no substance and is liable to be dismissed, and is hereby dismissed at motion stage.